NO. 14-0721

IN THE SUPREME COURT OF TEXAS

USAA Texas Lloyds Company,

Petitioner,

v.

Gail Menchaca,

Respondent.

On Petition for Review from the Thirteenth Court of Appeals at Corpus Christi–Edinburg, Texas

Cause No. 13-13-00046-CV

AMICUS CURIAE BRIEF OF THE CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA IN

SUPPORT OF PETITIONER’S MOTION FOR REHEARING

Dale Wainwright State Bar No. 00000049 wainwrightd@gtlaw.com Kendyl Hanks State Bar No. 24032273 GREENBERG TRAURIG LLP 300 West 6th Street, Suite 2050 Austin, Texas 78701 Telephone: (512) 320-7200 Facsimile: (512) 320-7210

ATTORNEYS FOR AMICUS CURIAE THE CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA

FILED14-072110/11/2017 6:22 PMtex-20012481SUPREME COURT OF TEXASBLAKE A. HAWTHORNE, CLERK

-ii-

TABLE OF CONTENTS

Page

INDEX OF AUTHORITIES .............................................................................. iii

STATEMENT OF INTEREST ............................................................................ 1

INTRODUCTION .................................................................................................. 2

SUMMARY OF ARGUMENT ............................................................................. 3

DISCUSSION ......................................................................................................... 6

I. Applying Menchaca’s Five Rules, the Court Should Render a Take-Nothing Judgment. ........................................................................... 7

II. If it Remands, the Court Should Clarify the Circumstances in Which “Policy Benefits” are Recoverable as Damages Under the Insurance Code. ..................................................................... 13

CONCLUSION ..................................................................................................... 20

CERTIFICATE OF COMPLIANCE ................................................................ 23

CERTIFICATE OF SERVICE .......................................................................... 24

-iii-

INDEX OF AUTHORITIES

Page(s)

Cases

JAW The Pointe, L.L.C. v. Lexington Ins. Co., 460 S.W.3d 597 (Tex. 2015) ................................................................ 13

Progressive County Mut. Ins. Co. v. Boyd, 111 S.W.3d 919 (Tex. 2005) .................................................................. 9

Provident Am. Ins. Co. v. Castañeda, 988 S.W.2d 189 (Tex. 1998) .......................................................... 2, 7, 9

Republic Ins. Co. v. Stoker, 903 S.W.2d 338 (Tex. 1995) ........................................................ 2, 7, 10

Twin City Fire Ins. Co. v. Davis, 904 S.W.2d 663 (Tex. 1995) ............................................................... 8-9

USAA Texas Lloyds Co. v. Menchaca, No. 14-0721, 2017 WL 1311752 (Tex. April 7, 2017) ................. passim

Vail v. Tex. Farm Bureau Mut. Ins. Co., 754 S.W.2d 129 (Tex. 1988) .................................................... 2, 7, 8, 11

Statutes

TEX. INS. CODE § 541.151 ........................................................................... 7

Other Authorities

TEX. R. APP. P. 59.2.................................................................................. 22

Umair Irfan, The stunning price tags for Hurricanes Harvey and Irma explained, MSN.com (Sept. 19, 2017), http://www.msn.com/en-us/money/markets/the-stunning-price-tags-for-hurricanes-harvey-and-irma-explained/ar-AAs8NOo?li=BBnb7Kv&ocid=bdtdhp .................................................. 3

STATEMENT OF INTEREST

The Chamber of Commerce of the United States of America is the

world’s largest federation of businesses and associations, representing

300,000 direct members and indirectly representing the interests of

more than three million U.S. businesses and professional organizations

of every size and in every relevant economic sector and geographical

region of the country. An important function of the Chamber is to

represent its members’ interests by filing amicus curiae briefs in cases

involving issues of national concern to American businesses.

The Chamber has no direct financial interest in the outcome of

this litigation. No counsel for a party wrote this brief in whole or in

part, and no counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. No person other than

amicus curiae, its members, or its counsel made a monetary

contribution intended to fund its preparation or submission.

-2-

INTRODUCTION

In an effort to reconcile its prior decisions in Vail, Castañeda, and

Stoker1 (among others), the Court’s April 7, 2017 opinion attempted to

clarify Texas insurance jurisprudence by enunciating five general rules

regarding the interplay between breach of contract claims and tort

claims under the Texas Insurance Code. The Chamber applauds the

Court’s objective of providing greater clarity and guidance is this area of

law.

The Chamber respectfully submits, however, that the Menchaca2

opinion should be further clarified to disentangle the overlapping

concepts of “coverage,” “policy benefits,” and, importantly, the different

measures of damages that might be available—whether under a

contract theory or the Insurance Code—where a jury finds there is no

breach of the insurance policy. Addressing the distinction between, and

interplay among, policy benefits in particular and damages generally is

crucial to achieve clarity regarding the availability of different

1 Provident Am. Ins. Co. v. Castañeda, 988 S.W.2d 189 (Tex. 1998); Republic Ins. Co. v. Stoker, 903 S.W.2d 338 (Tex. 1995); Vail v. Tex. Farm Bureau Mut. Ins. Co., 754 S.W.2d 129 (Tex. 1988). 2 USAA Texas Lloyds Co. v. Menchaca, No. 14-0721, 2017 WL 1311752 (Tex. April 7, 2017).

-3-

measures of damages in future cases that potentially affect all insured

businesses in the state. The need for more definitive guidance for

businesses, insureds, and courts is even more pressing in the wake of

Hurricane Harvey—described by some as possibly the costliest disaster

in United States history3—which will undoubtedly give rise to litigation

for years to come.

USAA filed a Motion for Rehearing noting there is substantial

confusion regarding the interpretation of the Court’s decision and how

it should be applied by the courts. MFR at 1-3. Indeed, plaintiff now

argues Menchaca’s five rules, as applied here, mean the court of

appeals’ judgment should be affirmed instead of reversed. MRF Resp.

at 15-18. The Chamber respectfully urges the Court to take this

opportunity to clarify its opinion and its application to this case.

SUMMARY OF ARGUMENT

As damages for USAA’s alleged breach of contract, the plaintiff in

this case sought only the benefit of her bargain under the insurance

3 See, e.g., Umair Irfan, The stunning price tags for Hurricanes Harvey and Irma explained, MSN.com (Sept. 19, 2017), http://www.msn.com/en-us/money/markets/the-stunning-price-tags-for-hurricanes-harvey-and-irma-explained/ar-AAs8NOo?li=BBnb7Kv&ocid=bdtdhp (“Estimates for the cost of Hurricane Harvey’s damage have come in at $65 billion, $180 billion, and as high as $190 billion—the last of which would make it the costliest disaster in US history.”).

-4-

policy—i.e., the “policy benefits.” At the trial court, she abandoned

claims for any extra-contractual damages she may have suffered in

addition to policy benefits. Menchaca at *1 n.3. Following a trial, the

jury affirmatively rejected the plaintiff’s claim that USAA breached the

insurance policy. This Court concluded sufficient evidence supported

the jury’s no-breach-of-policy finding because the plaintiff’s “damages

were less than the amount of her deductible.” Menchaca at *14.

Under these circumstances, this Court should make clear that,

where there is an affirmative jury finding that the policy has not been

breached, an insured should be precluded from recovering “policy

benefits” as damages.

This principle has been recognized and relied on in the industry,

by both insureds and insurers, for decades. Insureds rely on this settled

expectation in deciding the amount of coverage needed in light of the

cost of coverage and the risks they can bear. Similarly, insurers rely on

the expectation that their agreement is to provide defined coverage, and

accordingly not to provide coverage not agreed to, in setting the cost of

coverage and calculating reserves necessary to ensure their overall

coverage exposure. For both insureds and insurers, the settled

-5-

expectation is that contract benefits are only what the insured paid

for—no more and no less.

Under this rule, where the insured submitted no claim for

damages other than policy benefits, the jury’s affirmative finding that

USAA did not breach the policy should be dispositive under Menchaca’s

“no-recovery rule.” Rendering a take-nothing judgment, or providing

additional guidance for submitting these issues to the jury on remand,

would provide much-needed clarity regarding how the Court’s five rules

should be applied, and would avoid uncertain liability for businesses

that have complied with their contractual policy obligations. Doing so

would not constitute an advisory opinion, but would be specific to cases

such as this where a jury finds an insurer did not fail to comply with its

policy obligations.

The Court should grant USAA’s motion for rehearing, and modify

its opinion to confirm that where there is no breach of an insurance

policy, damages for claims under the Insurance Code are limited to

those extra-contractual measures that have been pleaded and proved to

the jury under the Court’s independent-injury rule. This should result

in a take-nothing judgment in this case under the no-recovery rule—

-6-

because the plaintiff did not seek or prove any damages other than

policy benefits. See infra Section I. Alternatively, in the event of a

remand, the trial court should be instructed to submit separate

damages questions with respect to the plaintiff’s contract and Insurance

Code claims (as USAA originally requested at trial), with proper

instructions regarding available measures of damages under each

theory. This would provide much-needed clarity for future litigants

seeking to properly instruct juries in cases where an insured pursues

policy benefits as damages under both breach-of-contract and statutory

liability theories. See infra Section II.

DISCUSSION

The Chamber agrees with the Court that (1) “the trial court and

court of appeals erred in disregarding the jury’s answer to Question 1,”

and (2) reversal of the judgment in the plaintiff’s favor is warranted.

Menchaca at *14. However, the Chamber asks the Court to make clear

that policy benefits are not available as damages under the Insurance

Code where the jury finds there is no breach of the insurance contract.

Here, because the jury found there was no breach of the policy, and

because the plaintiff abandoned any claim for damages other than

-7-

policy benefits, damages are not recoverable as a matter of law under

the five rules set forth in Menchaca.

I. Applying Menchaca’s Five Rules, the Court Should Render a Take-Nothing Judgment.

The Court’s opinion rejects the notion that “an insured can never

recover policy benefits as damages for a statutory violation.” Menchaca

at *7. The Chamber does not ask the Court to depart from that holding,

but seeks further guidance for litigants based on the facts of this case.

To harmonize this Court’s decisions in Vail, Castañeda, and Stoker—

and consistent with Menchaca’s five enunciated rules—the Court should

clarify that policy benefits may not be recovered as statutory damages

under the Insurance Code where the jury finds there is no breach of the

policy in the first instance.

While the Menchaca opinion seeks to clarify the distinction

between “coverage” and “benefits,” it does not clarify the related

questions of whether and to what extent “policy benefits” may be

recoverable as damages under the Insurance Code. A plaintiff “who

sustains actual damages may bring an action … for those damages

caused by the other person engaging in an act or practice” that is

prohibited by the Code. TEX. INS. CODE § 541.151. Here, the jury found

-8-

there was no breach of the policy because the plaintiff’s “damages were

less than the amount of her deductible.” Menchaca at *14. Therefore,

the plaintiff’s statutory damages claim must be something other than

benefit of the bargain—i.e., something other than “policy benefits.”

Because the plaintiff here sought only policy benefits as damages, and

she abandoned any claim for extra-contractual damages, the jury’s no-

breach finding precludes recovery under the Insurance Code.

This approach is consistent with Vail, where this Court held that

an insurer’s “unfair refusal to pay the insured’s claim causes damages

as a matter of law in at least the amount of the policy benefits

wrongfully withheld.” Vail, 754 S.W.2d at 136 (emphasis added). Here,

some benefits were available under the policy, but they fell below the

deductible limit so there was no cash payment to the insured. Menchaca

at *14. Presented with these facts, the jury found no breach of the

policy—and so no “policy benefits” were “wrongfully withheld” under

Vail. This approach is also consistent with Twin City, which strongly

suggested that where a “failure to properly investigate a claim” actually

relates to “the insurer’s breach of its contractual duties to pay covered

claims,” that claim should be barred by a no-breach finding. See Twin

-9-

City Fire Ins. Co. v. Davis, 904 S.W.2d 663, 666 n.3 (Tex. 1995). Such a

rule does not preclude all recoveries under the Insurance Code where

there is no breach—but it precludes a benefit-of-the-bargain measure in

the form of policy benefits.

The Court can avoid future confusion by clarifying the distinction

between “policy benefits” and “extra-contractual damages” in the

context of Menchaca’s five rules. If the jury finds there is no breach of

the policy, the insured cannot recover policy benefits as statutory

damages, but may be entitled to recover some extra-contractual

measure. See Castañeda, 988 S.W.2d at 198 (acknowledging “there

might be liability for damage to the insured other than policy benefits or

damages flowing from the denial of the claim if the insured mishandled

a claim”) (emphasis added); see also Progressive County Mut. Ins. Co. v.

Boyd, 111 S.W.3d 919, 922 (Tex. 2005) (rendered a take-nothing

judgment on a failure-to-investigate claim where the plaintiff did not

allege any damages “unrelated to and independent of the policy claim”);

Twin City, 904 S.W.2d at 666 n.3 (“[S]ome acts of bad faith, such as a

failure to properly investigate a claim or an unjustifiable delay in

processing the claim, do not necessarily relate to the insurer’s breach of

-10-

its contractual duties to pay covered claims, and may give rise to

different damages.”); Stoker, 903 S.W.2d at 341 (acknowledging “the

possibility that in denying the claim, the insurer may commit some act,

so extreme, that would cause injury independent of the policy claim”).

This proposed clarification is consistent with Menchaca’s five

rules. If the general rule is that “an insured cannot recover policy

benefits as damages for an insurer’s statutory violation if the policy

does not provide the insured a right to receive those benefits,”

Menchaca at *4, that rule should equally apply to both the existence of

coverage and to the amount of benefits due for a covered claim. As

applied in this case: “an insured cannot recover [additional] policy

benefits as damages for an insurer’s statutory violation if the policy

does not provide the insured a right to those [additional] benefits.”

Due to the jury’s no-breach finding (because the insured’s

damages fell under the deductible), this case does not fall into the

entitled-to-benefits rule because no benefits were “wrongfully withheld.”

Again, as applied in this case: “an insured who establishes a right to

receive [additional] benefits under the insurance policy can recover

those [additional] benefits as actual damages under the Insurance Code

-11-

if the insurer’s statutory violation causes the loss of benefits.”

Menchaca at *4. Because the insured did not establish a right to recover

additional benefits under the policy (the jury rejected that contract

theory), she cannot unilaterally elect to recover additional policy

benefits under the Insurance Code.

Concluding that an insured might be able to recover “policy

benefits” as actual damages under either a breach of contract theory or

the Insurance Code is nothing more than an election of remedies issue,

assuming both claims were proven. It can be a meaningful election in

some cases because it might permit an insured to elect potentially

higher remedies under the Insurance Code. See Menchaca at *8

(“[I]nsureds could elect to recover the benefits under the statute even

though they also could have asserted a breach-of-contract claim.”)

(citing Vail, 754 S.W.2d at 136); see also id. at *3 (“[T]he Insurance Code

supplements the parties’ contractual rights and obligations.”). But that

election of remedies should be unavailable where the jury affirmatively

determines there is no breach, thus rejecting any contract recovery.

Under Menchaca’s independent-injury rule, “if an insurer’s

statutory violation causes an injury independent of the loss of policy

-12-

benefits, the insured may recover damages for that injury even if the

policy does not grant the insured a right to benefits.” Menchaca at *4.

Had the plaintiff submitted an alternative damage measure—

something independent of a right to policy benefits—then she might

have been able to recover under the independent-injury rule. But she

did not. As the Court notes, as damages for her claims for “breach of

the insurance policy and unfair settlement practices in violation of the

Texas Insurance Code,” the plaintiff “sought only insurance benefits

under the policy, plus court costs and attorney’s fees.” Menchaca at *1.

She abandoned her claim for extra-contractual damages, limiting her

statutory claim to “benefits that should have been paid pursuant to the

policy.” Id. at *1 n.3 (internal quotes omitted).

Therefore, Menchaca’s no-recovery rule applies because “an

insured cannot recover any damages based on an insurer’s statutory

violation if the insured had no right to receive benefits under the policy

and sustained no injury independent of a right to benefits.” Menchaca

at *4 (emphasis in original). The plaintiff submitted one damages

theory to the jury: that she should have received more policy benefits

under her insurance contract. Whether that claim is articulated in

-13-

terms of coverage or breach is irrelevant—it does not resolve the

question of available damages. Where the jury finds no breach, that

finding should preclude recovery of additional policy benefits as a

matter of law because the parties to the insurance policy agreed to

those terms.4

On these facts, because the insured sought only policy benefits as

damages, the Court should render a take-nothing judgment based on

Menchaca’s five rules. Otherwise, as USAA has noted in its Motion for

Rehearing, plaintiffs in other cases will rely on the Court’s opinion for

the notion that an insured may recover contract damages even when a

jury finds there has been no breach—and regardless of whether they

have alleged or proved any independent injury.

II. If it Remands, the Court Should Clarify the Circumstances in Which “Policy Benefits” are Recoverable as Damages Under the Insurance Code.

If the Court does not render judgment, it would be beneficial to

further clarify its decision with respect to available measures of

damages where there is no breach of the insurance policy. In the context

4 An insured seeking policy benefits as a measure of damages bears the burden of establishing coverage exists in the first instance with respect to the benefits she seeks to recover. See JAW The Pointe, L.L.C. v. Lexington Ins. Co., 460 S.W.3d 597, 603 (Tex. 2015).

-14-

of liability, the Menchaca opinion addresses confusion in prior case law

regarding the terms “breach” and “coverage.” Menchaca at *6–7. But

the opinion fails to resolve that confusion in a practical way with

respect to “policy benefits” and whether they can be recovered as

damages under the Insurance Code where the jury finds the insurance

policy was not breached because the insurer did not withhold benefits to

which the insured was entitled.

In concluding that the trial court erred by disregarding Question

1, Menchaca acknowledges there was evidence the insured’s “damages

were less than the amount of her deductible,” and thus “at least some

evidence supported the jury’s finding that USAA did not fail to comply

with its obligations under the policy.” Menchaca at *14 (emphasis

added). In other words, there was no breach of the policy agreement

because the insured was not entitled to any policy benefits above what

was paid (or, in this case, applied to the deductible).5

The plaintiff nonetheless seeks to recover “policy benefits” as

damages based on her claim that the amount that should have been

5 In fact, the jury rejected the plaintiff’s claim that USAA failed “to attempt in good faith to effectuate a prompt, fair, and equitable settlement of a claim when the liability under the insurance policy”—i.e., coverage—“had become reasonably clear.” Menchaca at *2 n.4.

-15-

covered was something more than USAA applied to her deductible.

Because her contract claim failed, she pursues this benefit-of-the-

bargain measure—and only this measure—as actual damages under the

Insurance Code in Question 3, where the jury awarded her $11,350.

There is plainly a conflict between the jury’s finding that the

insurer complied with the policy and the jury’s finding that the insurer

should have compensated the insured for additional unpaid “policy

benefits.” See Menchaca at *7 (noting that where a policy covers a loss,

“the insurer necessarily breaches the policy if it fails to pay benefits for

the loss because the insured is entitled to those benefits”). Although

she alleged an Insurance Code violation, the plaintiff framed her

damages claim under the Insurance Code solely in terms of “policy

benefits;” thus, the jury’s finding of no breach should have precluded a

benefit-of-the-bargain recovery under the Insurance Code.

That conclusion would not prevent future litigants from pursuing

damages that arise independent of, or in addition to, policy benefits

they have already received (if they are entitled to them). But to allow

“policy benefits” as the sole measure of damages where the policy is not

breached invites materially conflicting jury findings.

-16-

That conflict is not resolved by the Court’s opinion, which

attempts to distinguish the concepts of coverage and benefits without

clarifying available damage measures where there is no breach. The

Court holds that “[w]hile an insured cannot recover policy benefits for a

statutory violation unless the jury finds that the insured had a right to

the benefits under the policy, the insured does not also have to establish

that the insurer breached the policy by refusing to pay those benefits.”

Mechaca at *7 (emphasis in original). But this statement does not

address how unpaid policy benefits could qualify as actual damages

caused by a statutory violation when the jury has affirmatively found

there is no breach of the insurance policy in the first instance.

Attempting to reconcile the jury’s no-breach finding with its award

of policy benefits as statutory damages, the Court focuses on coverage

versus breach. “In one sense, no relevant distinction exists between

‘breach’ and ‘coverage’ in this context because no breach can occur

unless coverage exists, and if there is coverage, there is necessarily a

breach if the insurer fails to pay the amount covered.” Menchaca at *7

(emphasis added). This is clear Black Letter Law—and in this case it

should be dispositive. Here the insurer did not “fail[] to pay the amount

-17-

covered” and thus there was no breach (as the jury found in Question 1),

and the insured was not deprived of the benefit of her bargain.

That should have ended the inquiry. But the opinion goes on to

explain that “[a]lthough our prior decisions refer interchangeably to

both ‘breach’ and ‘coverage,’ our focus in those cases was on whether the

insured was entitled to benefits under the policy, because an insurer’s

statutory violation cannot ‘cause’ the insured to suffer the loss of

benefits unless the insured was entitled to those benefits.” Menchaca at

*7 (emphasis added). It is unclear why this distinction makes a

difference where the jury finds there is no breach. Whether an insured

is entitled to “benefits under the policy” is a question that relates

equally to underlying coverage determinations and the amount of policy

benefits the insured is entitled to receive (even if falling under the

deductible, as in this case, or in other circumstances where, for

example, a particular type of claim is subject to specified limits). In

other words, if a statutory violation cannot “cause” the loss of benefits

where there is no right to benefits in the first instance, a statutory

violation also cannot “cause” the loss of benefits where there is no right

to more benefits than have already been paid or applied to a deductible.

-18-

Elsewhere in the opinion the Court seems to confirm that the

distinction should not make a difference. The Court states that the

Insurance Code “does not create insurance coverage or a right to

payment of benefits that does not otherwise exist under the policy.”

Menchaca at *3 (citation omitted, emphasis added). This statement

supports the insurer’s position here: whether the dispute is

characterized as about underlying coverage or a deficient payment (or

an inadequate credit toward a deductible), the right to any particular

amount of policy “benefits” still emanates from the insurance contract

itself. If the jury finds the insurer did not breach that contract in

declining to pay a particular amount of policy benefits, the insured

should not be permitted to pursue those same benefit-of-the-bargain

damages under a statutory theory of liability. See id. at *6 (“If the

insurer violates a statutory provision, that violation—at least

generally—cannot cause damages in the form of policy benefits that the

insured has no right to receive under the policy.”) (footnote omitted).

The Court’s analysis effectively renders the question of breach

meaningless; and, at least according to the plaintiff’s interpretation of

the decision, allows an insured to pursue benefit-of-the-bargain

-19-

damages under the Insurance Code irrespective of an insurer’s

compliance with the policy. But it should not matter whether the

insurer wrongfully denied any benefits (based on a coverage

determination), or wrongfully denied some benefits (because of a

deficient payment). If the only damages a plaintiff pursues are “policy

benefits,” then that benefit-of-the bargain measure should be precluded

as a matter of law if the jury finds the insurer complied with the policy’s

terms.

Such a rule does not ask this Court to adopt a hard line that

statutory damages are always unavailable where there is no breach.

Rather, it would merely confirm that even where there is coverage,

where policy benefits fall under the deductible and the jury finds no

breach, additional “policy benefits” should not be an available measure

of damages under the Insurance Code. Here, by finding no breach of the

policy but awarding a greater amount of “policy benefits” as damages,

the verdict fatally conflicts and should preclude any recovery.

In the event of a remand in the interest of justice, the Court

should provide more definitive guidance by expressly confirming that

policy benefits are not available as a measure of damages under the

-20-

Insurance Code where the jury finds there is no breach of the policy.

Whether and to what extent an insured may recover some extra-

contractual measure of damages under the “independent injury rule”

should be resolved based on the pleadings and evidence presented in the

particular case. But in light of Menchaca’s five rules, further guidance

is necessary regarding the submission of these issues to juries in bad-

faith lawsuits, and the measures of available damages where the jury

finds there is no breach. For example, among other guidance sought by

the Petitioner, the Court should clarify that when an insured pursues

damages for both breach of the policy and for torts under the Insurance

Code—and when there is a proper objection—the trial court should

submit separate damages questions for each claim and properly instruct

the jury regarding available measures of damages for each.

CONCLUSION

For these reasons, the Chamber supports the Petitioner’s motion

for rehearing and its request that the Court clarify its opinion.

Consistent with the five rules delineated in Menchaca, the Chamber

urges the Court to clarify that damages under the Insurance Code do

not include policy benefits where the jury has found the insurer did not

-21-

breach the insurance contract. That conclusion should apply equally

whether the no-breach finding is based on lack of coverage or failure to

pay full benefits to which an insured claims entitlement.

The Court’s decision to remand—instead of rendering judgment

for USAA under the facts of these case—suggests to litigants that they

might be able to pursue benefit-of-the-bargain damages even where the

jury has found the insured received the benefit of her bargain under the

insurance contract. The Court should avoid such misimpression by

confirming that, while additional extra-contractual damages may be

available in a special case, this plaintiff has not sought such alternative

measures, so her claim fails as a matter of law. Such a holding will

provide much-needed guidance to other litigants and courts seeking to

apply the Court’s decision to future litigation, and will enable

businesses to more accurately assess potential statutory liability where

they have complied with their policy obligations.

In light of the significance of the Menchaca opinion for thousands

of Texas businesses, and the tremendous insurance issues that will

arise from recent weather-related events, the Chamber suggests that

entertaining re-argument by the parties would assist the Court in

-22-

addressing the clarifications sought by USAA’s motion for

reconsideration. See TEX. R. APP. P. 59.2.

Respectfully submitted, GREENBERG TRAURIG LLP By: /s/ Dale Wainwright

Dale Wainwright State Bar No. 00000049 wainwrightd@gtlaw.com Kendyl Hanks State Bar No. 24032273 hanksk@gtlaw.com GREENBERG TRAURIG LLP 300 West 6th Street, Suite 2050 Austin, Texas 78701 Telephone: (512) 320-7200 Facsimile: (512) 320-7210

ATTORNEYS FOR AMICUS CURIAE THE CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA

-23-

CERTIFICATE OF COMPLIANCE

This brief complies with the length limitations of TEX. R. APP. P.

9.4(i)(3) because this brief consists of 4,262 words, excluding the parts of

the brief exempted by TEX. R. APP. P. 9.4(i)(1).

/s/ Dale Wainwright Dale Wainwright

-24-

CERTIFICATE OF SERVICE

I certify that a copy of this amicus brief was served on counsel of record by using the Court’s CM/ECF system on the 11th day of October, 2017, addressed as follows: Wallace B. Jefferson State Bar No. 00000019 wjefferson@adjtlaw.com Rachel A. Ekery Charles T Frazier, Jr. ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP 515 Congress Avenue, Suite 2350 Austin, Texas 78701

Thomas R. Phillips State Bar No. 00000022 Tom.phillips@bakerbotts.com Mary Margaret Roark BAKER BOTTS LLP 98 San Jacinto Blvd., Suite 1500 Austin, Texas 78701

Counsel for Petitioner

Jennifer Bruch Hogan State Bar No. 03239100 jhogan@hoganfirm.com Richard P. Hogan, Jr. James C. Marrow HOGAN & HOGAN 711 Louisiana, Suite 500 Houston, Texas 77010 Randal Cashiola State Bar No. 03966802 rcashiola@cashiolalaw.com CASHIOLA & BEAN 2090 Broadway Street, Suite A Beaumont, Texas 77701

Gilberto Hinojosa State Bar No. 09701100 ghinojosa@ghinojosalaw.net LAW OFFICE OF GILBERTO HINOJOSA & ASSOCIATES, P.C. 622 E. Saint Charles Street Brownsville, Texas 78520 J. Steve Mostyn State Bar No. 00798389 jsmostyn@mostynlaw.com THE MOSTYN LAW FIRM 3810 West Alabama Street Houston, Texas 77027

Counsel for Respondent /s/ Dale Wainwright Dale Wainwright